CORRECTIONAL SERVICES (PRISONER COMPENSATION QUARANTINE FUNDS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 28 October 2010.)

Mr ODENWALDER (Little Para) (10:31): This bill aims to quarantine damages awarded to a prisoner following an incident in prison and subsequent legal action against the state. The funds would then be made available to victims who successfully apply for damages for a criminal act of the prisoner, or to creditors, subject to any other statutory provisions that might apply to the money.

I note, and the government notes, that this bill is an improvement on an earlier, similar measure proposed by the member, which the government found to be unworkable. However, flaws remain, preventing the government from supporting this new bill.

To summarise: the bill restricts compromises of claims by prisoners against the state. This can only occur where (a) the court approves them and (b) the medical expenses are specified and the costs are agreed at the time of settlement or to be later taxed. It also requires that a judgement in favour of a prisoner and against the state must specify the amount of the medical expenses and legal costs unless costs are to be taxed.

The bill also limits the cases in which the court can approve or award damages by reference to the proportion of the total payment that is due to medical treatment costs or legal costs. The prisoner's award, if over $10,000, must be paid to the CE of the Department of Correctional Services. The CE then advertises the existence of an award. A person who is the victim of a criminal act of the prisoner can apply for more information, which the chief executive can then choose to give to the victim.

A victim of a criminal act can then litigate against the prisoner over the criminal act. If the victim wins, they are entitled to be paid the damages out of the money held by the chief executive. A creditor of the prisoner can also claim payment from this money. Both claims are subject to statutory provisions about the money, for example, tax debts or child support debts.

The government has several difficulties with this bill. First of all, there is no definition specifying who is a victim of a criminal act by the prisoner other than a statement to the effect that if one person is a victim, then all the members of his or her immediate family are also victims. That does not assist if one does not know who is a victim in the first place. A definition is crucial because the chief executive is only able to pay money to a person claiming under proposed section 81J if the person is a victim.

Putting that aside, another difficulty is that the bill is unclear about whether victims can claim from the fund repayment of their legal costs associated with suing the offender. This depends on whether the costs are part of the award against the prisoner. 'Award' is not defined but 'award of damages' is defined, the latter in such a way as to suggest that perhaps costs are excluded, although this is not absolutely clear. The bill should say one way or the other whether the victim will get back their costs of pursuing the prisoner—

Members interjecting:

The SPEAKER: Order!

Mr ODENWALDER: —because in many cases that will make a difference to whether or not the victim is willing to sue the prisoner.

It is also problematic that the bill gives persons who think they are victims no legal right to find out how many other victims and creditors are claiming on the fund, who they are or how much they are claiming. The chief executive can choose to disclose this information if he has it, but he does not have to. Unless a victim knows about the other claims on the fund of money, they cannot make an informed choice based upon the probable compensation and whether to incur the expense of pursuing the offender by legal action.

Members interjecting:

The SPEAKER: Order! There is too much background noise.

Ms Bedford: Absolutely! I can't hear him and I am beside him.

Mr ODENWALDER: The member for Florey cannot hear my dulcet tones. There is also uncertainty about what prisoner awards are captured. The prisoner's claim must arise 'out of and in connection with the prisoner's detention in the correctional institution', but it is unclear what this will include. If a prisoner is assaulted by another prisoner in circumstances where the state is found negligent, does this arise out of and in connection with detention? It is arguably not a necessary consequence of being incarcerated that other prisoners will assault you. What relationship must be shown between the detention and the harm done to the prisoner?

It is also unclear who will decide this question. Someone must, because only if the award arose in this way is the chief executive of Correctional Services entitled to quarantine the fund. The bill does not attempt to answer this question, no doubt leaving fertile ground for dispute between prisoners and the chief executive.

Another problem is to know who will ultimately decide whether the award of damages that a victim has obtained relates to a criminal act. Only if a victim is entitled to damages for a criminal act can the victim claim on the fund of money. The bill stipulates that it is not necessary to convict the prisoner, so there will not necessarily be a certificate of conviction to settle the question.

One cannot rely on the prisoner admitting to the offence, since it will not be seen in his or her interests to do so. It is not necessary for the court to decide this when determining whether the victim is entitled to damages, since a civil action does not depend on this. Does the chief executive simply take the victim's word for it? Can the prisoner then sue the chief executive, seeking to prove that the event for which the victim sued him was not a criminal act?

The bill also requires the victim to maintain secrecy about the amount of the award to the prisoner against the state, and other matters that the chief executive might disclose, on pain of criminal penalties. The benefit of this secrecy and why its preservation is worth putting the victim at risk of a criminal penalty of up to $10,000 is not disclosed.

There is also some uncertainty about the position of creditors. They are entitled to claim on the fund of money, but the bill does not say whether they can claim even after the time to pursue the debt has expired, or whether they can claim even if the prisoner has gone bankrupt. If this is not clarified, it will leave the chief executive in some difficulty administering the fund.

The instruction in new section 81L(4) and 81M(4) that in the case of the fund being insufficient to pay all the entitled persons in full the chief executive must make payments on a 'pro rata basis having regard to any priority of payment required by law' will also create difficulty. If there is a law prioritising one of the payments over the others, the chief executive should apply that law. That will prevent a pro rata distribution. If there is not such a law, then it is reasonable that the amount in the fund be shared by all claimants in proportion to the amounts due to them by the prisoner. You cannot do both.

A final concern that I will raise I believe is best illustrated by an example. Say, for example, an inmate is a member of gang X and is imprisoned for an attack on a member of gang Y. Other members of gang Y are already locked up in the same prison.

Putting aside the concerns that I have already outlined about the definition of a 'victim', this bill might create a situation where there would be a retribution attack by members of gang Y on the gang X member—whether or not this might occur anyway is beside the point.

This bill could create something of an incentive for the retribution attack to occur as not only would there be the gang revenge but also the gang Y member, who is the initial victim, stands to claim compensation on any money that the gang X member receives should he be successful in a claim against the state.

The potential for state government funds to effectively be paying off gangland debts is clearly not acceptable to the government. Other faults can be found with the bill, but I will not further delay the house. The government opposes this bill.

Debate adjourned on motion of Mr Pederick.